| Matter of Crystal JJ. (Sarah KK.) |
| 2011 NY Slip Op 04573 [85 AD3d 1262] |
| June 2, 2011 |
| Appellate Division, Third Department |
| In the Matter of Crystal JJ. and Others, Children Alleged to bePermanently Neglected. Tompkins County Department of Social Services, Respondent; SarahKK., Appellant. |
—[*1] Joseph R. Cassidy, Tompkins County Department of Social Services, Ithaca, for respondent. Andrew M. Rothstein, Elmira, attorney for the children.
Egan Jr., J. Appeal from an order of the Family Court of Tompkins County (Rowley, J.),entered October 5, 2010, which granted petitioner's application, in a proceeding pursuant toSocial Services Law § 384-b, to adjudicate respondent's children to be permanentlyneglected, and terminated respondent's parental rights.
Respondent is the biological mother of four minor children, all of whom were removed fromrespondent's home in October 2008 after it was discovered that, among other things, her youngestchild—then approximately 2½ years old—had been left home alone for anundetermined period of time. When respondent eventually returned to the residence on theevening in question, authorities determined that she was too intoxicated to care for her children.The children then were placed with their maternal grandmother where, by all accounts, they havesince remained.[*2]
In March 2010, petitioner commenced this permanentneglect proceeding seeking to terminate respondent's parental rights based upon her failure toplan for her children's future despite being afforded ample services and opportunities to do so.Following fact-finding and dispositional hearings, Family Court adjudicated the children to bepermanently neglected and terminated respondent's parental rights.[FN1]This appeal ensued.
We affirm. The record before us establishes, by clear and convincing evidence (see Matter of Laelani B., 59 AD3d880, 881 [2009]), that petitioner discharged its statutory duty to exercise diligent efforts tostrengthen the parent-child relationship (see Social Services Law § 384-b [7] [a])by offering services designed to address the very problems that led to the children'sremoval—namely, respondent's well-documented addiction to alcohol, marihuana andcocaine and her lack of appropriate housing. These services included referring respondent tovarious substance abuse programs, arranging for a psychosocial evaluation, assisting respondentin securing suitable housing and affording respondent regular visitation with her children,together with transportation or financial support to facilitate those visits. Thus, contrary torespondent's assertion, "this is not a case where the petitioning agency made only a marginalattempt to offer the barest of services to a parent in danger of losing . . . herchild[ren]" (Matter of Douglas H.[Catherine H.], 1 AD3d 824, 825 [2003], lv denied 2 NY3d 701[2004]).[FN2]
The record also contains clear and convincing evidence that, despite petitioner's diligentefforts in this regard, respondent failed to plan for the children's future (see SocialServices Law § 384-b [7] [a]; Matter of Ja'Heem W. [Beronica W.], 80 AD3d 917, 918 [2011];Matter of Tatianna K. [Claude U.],79 AD3d 1184, 1185 [2010]). Although respondent did successfully complete two inpatientsubstance abuse programs, she was discharged from one outpatient program for missing toomany group sessions and from another due to a lack of progress. Additionally, between her initialdrug screen in December 2008 and her second inpatient admission in September 2009,respondent tested positive for cocaine four times and, as of March 2010, remained in only thefirst of the three phases of her treatment program. Respondent also failed to secure adequatehousing for herself and the children; indeed, despite petitioner's efforts, respondent was"sanctioned" from both a local shelter and participation in a subsidized housing [*3]program. Finally, respondent continued to maintain a relationshipwith a man who, by her own admission, had a drinking problem—even though sherecognized that this relationship posed a barrier to her children's return. Under thesecircumstances, the record as a whole contains clear and convincing evidence that respondentpermanently neglected her children by failing to make a realistic plan for their future (see e.g. Matter of Kaytlin TT., 61AD3d 1085, 1087 [2009], lv denied 13 NY3d 709 [2009]; Matter of Andre M., 26 AD3d713, 714 [2006]).
Finally, we reject respondent's assertion that she should have been granted a suspendedjudgment. "A suspended judgment may be issued if it is in the best interests of the child[ren] toallow the parent additional time to improve parenting skills and demonstrate his or her fitness tocare for the child[ren]" (Matter of KaylaKK. [Tracy LL.], 68 AD3d 1207, 1208 [2009], lv denied 14 NY3d 707 [2010][citations omitted]). Here, respondent's own testimony revealed that she had been "clean" for lessthan a year as of the July 2010 dispositional hearing, had been employed for less than fourmonths and was living in an apartment that was not suitable for a family of five. In light of thistestimony, and given respondent's history of relapsing and lack of measurable progress inaddressing her parental deficiencies, we cannot say that Family Court abused its discretion interminating respondent's parental rights (see Matter of Nicholas R. [Jason S.], 82 AD3d 1526, 1528-1529[2011]; Matter of Keegan JJ. [AmandaJJ.], 72 AD3d 1159, 1161-1162 [2010]; Matter of Kayla KK. [Tracy LL.], 68AD3d at 1208-1209).
Peters, J.P., Rose, Malone Jr. and Stein, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: Although not entirely clear fromthe record, it appears that the children's father, who is not a party to this appeal, was the subjectof a separate permanent neglect petition and thereafter defaulted, resulting in the termination ofhis parental rights as well.
Footnote 2: While the record containsconflicting proof as to whether mental health counseling was formally offered to respondent, "wesimply find no support in the record for respondent's assertion that her mental health issues werevirtually ignored by petitioner" (Matterof Ariel PP., 9 AD3d 628, 629 [2004], lv denied 3 NY3d 608 [2004]). Further,petitioner's representatives testified that mental health service providers required evidence of anextended period of sobriety/recovery before commencing counseling which, according to herassigned caseworker, respondent ultimately did not achieve.